Who Gets Religious Exemptions And Why

This is TALK OF THE NATION. I'm Jennifer Ludden in Washington; Neal Conan is away. Religious exemptions have been in the news a lot lately. The Obama administration has revised its rules on insurance coverage to accommodate religious nonprofits. If the proposal sticks, they won't have to pay for coverage of birth control for employees.

It's a new twist on a very old tradition. Religious exemptions are nearly as old as the nation. Early debate centered on oath-taking and bearing arms in militias. Today, they're over where to educate children, whether to vaccinate them, who your church can hire or whether your synagogue pays taxes on its land, even what you can wear in a photo ID or if you can skip the photograph altogether.

Who decides religious exemptions, and what's their role in an increasingly secular society? If you've been affected by religious exemptions, tell us your story. Our number is 800-989-8255. Our email address is talk@npr.org. And you can join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION.

Later in the program, a North Korea reading list. But first religious exemptions. Joining us now is John Witte, he's a law professor and director of the Center for the Study of Law and Religion at Emory University. We're talking to him from member station WABE in Atlanta. And welcome to the program.

JOHN WITTE: Thank you, Jennifer, good to be here.

LUDDEN: So give us a bit of history here. When and why did religious exemptions start?

WITTE: We've had religious exemptions in the history of the West for a long time, but they came into the American scene in the 18th century. And religious exemptions were viewed as a way of achieving religious freedom for select groups. You mentioned a number of the kinds of exemptions that existed. In the 18th century, an important one was conscientious objection to military service. The thought being those that were conscientiously opposed wouldn't be forced into military service but could serve by an alternative means.

LUDDEN: Was that true in the Revolution? I'm curious.

WITTE: Absolutely, absolutely, and Quakers and Moravians and other groups were free from service, but they had to provide a substitute: a horse, a musket, provisioning for soldiers and the like.

Another one in the Revolutionary period and continuing into the republic was objection to oath-swearing. A person couldn't swear an oath, they could be free from the swearing of an oath on a Bible or another religious text, but they would have to give another alternative form of proving their veracity.

A third one was property tax exemptions for religious properties. The thought being that separation of church and state is better achieved by simply saying that the state will not tax the church, and the church in turn will do charitable service in the community, and it will be a wash in terms of the economic consequences for the community.

LUDDEN: So it was a religious freedom issue.

WITTE: It was a religious freedom issue and a way of achieving religious freedom, not the only way, but a way of achieving religious freedom when there was no way to otherwise release the tension between state power and the claims of conscience or a central commandment of the faith of a particular religious party.

LUDDEN: Now coming closer to the present, I have been reading that, you know, religious exemptions have actually been increasing in recent decades. Without getting too bogged down in the legalities, why is this?

WITTE: Part of it is I think the number of regulations and rules that now govern daily life are much denser than they were in the 19th century, and what the courts have done and what Congress and state legislatures have done is try to find a way of easing the tension when a general law, which is otherwise good, falls - creates a burden on the exercise of religion by a particular party or by a particular group.

So it's good to have general laws dealing with unemployment compensation, and you can't get unemployment compensation unless you will work when your employer wants you to work. But if your employer wants you to work on your Sabbath and you can't be accommodated, you should be able to get unemployment compensation.

It's fine to have a general dress code that's available, but if the general dress code does not accommodate your wearing your yarmulke or your head scarf, the thought is is that a court can provide the vehicle for a person to be able to wear their religious dress.

We use the legislature or we use the courts to create exemptions from general laws otherwise good but happen to fall afoul of the claims of conscience of an individual or ask them to do something that their faith does not allow them to do.

And they increase as I think a function just of the density of laws in the 20th century, and it's also a function of a growing understanding of our First Amendment requirement that we protect the free exercise rights of all parties. And the thought is is that that free exercise right, constitutional right, can now be claimed by an individual when the legislature does not accommodate him or accommodate that group.

LUDDEN: You've said, though, that the separation of church and state is no longer the law of the land, and you've called these exemptions a type of religious affirmative action. What do you mean?

WITTE: Yes, I did that in a nice article by Diana Henriques, who gives a six-part series in the New York Times dealing with exemptions, and I would commend that to listeners. It's a wonderful story. And what I'm saying there is that while separation of church and state as an easy principle of saying this is how we do religious freedom no longer is a summary of what the First Amendment demands.

What exemptions do is allow religious groups to make claims against a state and to make claims against certain kinds of laws that they need to have accommodated. So a religious organization is perfectly fine with having the Civil Rights Act in place and saying that religious discrimination in general is not something that we want to allow in our community, but a religious organization has to have the ability to engage in religious discrimination in its core religious employment decisions.

You can't force the Catholic Church to hire the rabbi to deliver the Eucharist, and you can't force the synagogue to hire the Catholic Church to read the Torah. Those are considered to be core ways of doing not affirmative action but doing what's necessary to ease the tension between state power and the religious claims.

LUDDEN: And we want to hear about some other exemptions people may not have even thought of. Let's start off with a caller. Abby(ph) is in Toledo, Ohio. Hi Abby.

ABBY: Hi there. I'm a hospital chaplain, and like a lot of clergy, I had something called the Clergy Housing Allowance, which allows a portion of my salary to be tax-free. It's been challenged in court before, but it still has standing, and it's been in place for many decades.

LUDDEN: And how important is it to you?

ABBY: Well, I mean of course it's very important to me because it's many hundreds of dollars a month that's not taxed. But I know that it angers a lot of people that we have this benefit.

LUDDEN: And how would you justify it, Abby? What would you say the reason for it should be?

ABBY: Well, I'm probably not the best person to justify it because I do think that the other side has a valid claim that we probably should not get this as an exemption.

LUDDEN: John Witte, do you want to address that?

WITTE: So tax exemption for property tax, income tax, other kinds of taxes is a normal part of doing religious freedom in the history of the United States, and it's one that we've easily granted to people that are doing religious services in the community.

The argument is on the one hand, separation of church and state, which is still one of the many principles of religious liberty, is better afforded by exempting religious persons and activities from taxation, and in turn by giving them exemptions from tax, those parties are free to do more good work in the community that the state would otherwise have to take on.

And the income tax area is an area where we've insisted on that all along not as a free exercise right or a constitutional right but as a legislative concession, making the judgment that the community is better served by having exempt religious employees doing good work in the community than taxing them and perhaps mitigating the amount of good work they can do.

WITTE: Yeah, there are a few groups, Christian Scientists, some Jehovah's Witness groups, other more exotic, less recognizable faiths, that say that to use medicine preventively, to use blood transfusions in a remedial fashion, is in many ways to violate God's own work in taking care of the person and healing the person.

In those instances, lower courts in the United States, the Supreme Court in passing, has said the free exercise claim there has to give way to the right to life that the child can enjoy. There, the danger to life and limb is too great, even if the religious freedom claim is considered as sincere and important, a balancing of rights at that point, right to life versus right to religion, right to life trumps.

LUDDEN: OK, we have Larry(ph) on the line from Boynton Beach, Florida. Hi Larry.

LARRY: Hi, I appreciate you taking my call, and good timing for doing so. That whole idea of religious freedom and freedom in general, I think people need to understand - and particularly in the context of religion - this is not an unfettered right or an unfettered freedom. There have to be limits. There have to be restrictions. I appreciate the comment the gentleman made earlier about things are changing, and the First Amendment application has got to change and that religious institutions, to maintain their core integrity, need to be able to discriminate.

LUDDEN: Tell us your story, Larry.

LARRY: I'm sorry?

LUDDEN: Tell us your story. How have you been affected by this?

LARRY: Well, I've actually been denied faculty positions at religious institutions that I don't happen to be a part of in terms of the religion. And I think if you're going to use your religion to only address and deal with people who are of your same belief, then you can discriminate, and you can pick and choose.

However, if you're going to be, let's say, a university where you're looking to cater to more than just people of your denomination, if you're going to be a hospital, and you're going to cater to people who are not just of your denomination, you should not have that freedom. You should be able to operate within the confines and context of the law of the land, and you should not have the right to pick and choose what medical services you offer or what kind of information you give if you are not only directing yourself to your own denomination.

LUDDEN: All right, Larry, thanks so much. John Witte, do you hear this a lot?

WITTE: Yes, I hear it a lot, and Larry, I think, is putting his finger on the edges of the ability of a religious organization to engage in religious discrimination for its core religious functions. It's easy again for the Catholic Church to say only priests can deliver the Eucharist, and a priest that violates his basic moral or religious duties can be discharged.

It's much harder in a teaching context. If it's a seminary, and they're trying to prepare people for the ministry, it's easy to say that that seminary can only hire people that are of the same denomination. If it's a more general college or university context, it's much more difficult for that religiously chartered university offering a variety of different courses to say only Catholics or only Jews or only Lutherans may apply.

And at the edges of those doctrines is where we run into the question of to what extent does Larry's rights for freedom from discrimination trump the church's rights to engage in discrimination.

LUDDEN: All right, and we're going to hear more about that in a moment. John Witte is a law professor at Emory University. We'll also be joined by Richard Garnett at Notre Dame coming up. If you've been affected by religious exemptions, or if you've used one or run up against one, tell us your story, 800-989-8255. It's TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

LUDDEN: This is TALK OF THE NATION. I'm Jennifer Ludden in Washington. Religious exemptions come into play in all sorts of ways. The current debate over the Affordable Care Act and access to birth control is just one. Another is the same-sex marriage movement in New York, which legalized marriage for gay couples in 2011.

A religious exemption played a critical role. Republican senators in the state amended the bill to protect religious organizations and affiliated groups from lawsuits and penalties if they choose not to provide resources for same-sex weddings. And that fine print is cited as key to the bill's successful passage. Similar language appears in a bill in New Hampshire.

If you've been affected by a religious exemption, give us a call, 800-989-8255. Or send us an email, talk@npr.org, and you can share your story at our website. Go to npr.org, and click on TALK OF THE NATION. John Witte of Emory University is my guest, and we'll also be joined by Richard Garnett, associate dean for faculty research and professor of law at the University of Notre Dame. He is on his line from his office in South Bend, Indiana. Welcome to you.

RICHARD GARNETT: Thank you.

LUDDEN: If you can both stand by, we just want to bring another caller in to kick off this segment, and Richard(ph) is in Sioux City, Iowa. Hi there, Richard.

RICHARD: Hello, everyone. Thanks for taking my call.

LUDDEN: Tell us your story.

RICHARD: Well, I teach the Americans With Disabilities Act and other disability issues for a university here in the Midwest, and the Americans With Disabilities Act has always exempted churches from their buildings being - their facilities being accessible. I have a personal feeling on that, and I'd be interested in hearing your guests' reaction to that if you - on a more personal note, my dad has a disability, a mobility disability, and he has had to forego attending churches because of his inability to get in the building.

Now some churches, of course, they have elderly, a larger elderly population, and some take the initiative and proactively do what they can to make their older buildings accessible. But that's my story, and I'd be interested in hearing some reaction to it.

LUDDEN: Well, thanks very much. Richard Garnett, why would the church make the case for that exemption?

GARNETT: Well, in my view, a lot of churches do and should take every step they can to provide accommodations for folks with disabilities. I mean, I think most communities of worship are going to want to make their communities accessible to folks who have disabilities.

But compliance with the ADA is very costly, as I'm sure the caller knows, and there are any number of instances, starting from the tax code and working your way outwards, upward and downward, where the government has tried to exempt religious institutions when necessary to avoid imposing excessive costs on them.

If you value the work that religious enterprises do, if you value the free exercise of religion, then you're going to at least be sensitive to regulatory mandates that impose new and often pretty burdensome costs on them.

LUDDEN: But what about when churches provide services that other non-religious institutions do? We can think of soup kitchens, or some churches have child care centers. And they are exempted from, you know, costly licensing procedures and so forth. Is that fair to their non-religious competitors?

GARNETT: I guess I don't think of this as being a competition. I mean, churches provide clothing to the naked and food to the hungry because they feel called to do so. I think it's kind of a mistake when people act as though the government is doing churches a favor by letting them engage in this social welfare ministry. I mean, churches were doing this long before governments ever got the idea to do it.

And so long as these social welfare services, these good works, are being done in a way that's safe, it seems to me that it's not really the government's place to say look, we want to make sure that you're doing this in the same way that government agencies do. Again, it's not a competition.

LUDDEN: John Witte, how do these things - do they play out in courts sometimes?

WITTE: They play out in courts on occasion. There are a couple of wrinkles to this, one that my good friend Professor Garnett nails the issue. I think there are two things that have to be added. One is that while all non-religious charitable organizations can receive state funding and state support to do their activities, religious organizations can't. There's an Establishment Clause prohibition against that, which puts the religious community in a different posture.

And the second is is that many religious organizations that are doing these services, both the worship services that are available but also the charitable services, on their campuses are doing these in historic buildings, buildings themselves that have very severe restrictions on the kind of building codes that are - building renovations that can go on, special building codes that attach to any renovation that gets done. That also just triples the cost or quadruples the cost in many instances.

LUDDEN: All right, let's get another caller on the line. Kerry(ph) in Tampa, Florida, welcome to TALK OF THE NATION.

KERRY: Hi, thanks so much for taking my call. I wanted to share my experience with claiming a religious exemption for vaccinations for my children. My second child had severe reactions. We gave him his first vaccine, we had delayed it. Our pediatrician didn't think it was too much of a big deal. We did not agree.

And my husband and I kind of sat down and decided what are the vaccines that we feel are really important, since our child is having such a negative reaction to them. We're going to pare down this list. We ended up giving him three over the course of nine months. And we then went to our county office and filled out the paperwork for a religious exemption for vaccines.

LUDDEN: And what religion are you?

KERRY: We actually are not a part of any organized religion. At the time it was the only avenue available to us to have our child participate in different kinds of, you know, preschool or summer camps as you had mentioned. They did not ask us what our religion was, we didn't have to state that. We basically just had to listen to a bit of a lecture about how we were putting our child at risk.

LUDDEN: Right, and, well, did you tell other parents about this, and were they concerned? Because a lot of parents, you know, would want all the kids to be vaccinated along with theirs.

KERRY: You know, we - the first pediatrician we had we ended up leaving, and we found a pediatrician that was definitely more sympathetic. And it's interesting because my child, my youngest child is now five, and we've just found out that he has a specific mutation that does not allow his body to excrete or process toxins. So when he was having those severe reactions, it was all of the ingredients...

LUDDEN: OK, you know what, Kerry, we don't want to get too into the details here. Vaccines are a very controversial topic. But we are going to put your case here to our experts. Thanks so much for calling. Mr. Garnett, she mentioned that they didn't actually have a certain religion. It sounds like more I've seen the term philosophical exemption, some states allow this. Can you tell us what that is?

GARNETT: Yeah, there's actually a sort of long debate about this, that is whether exemptions that are available to religious believers should be available to people who have philosophical objections to a particular law. And my own view is that it's pretty deeply rooted in American history and in our traditions that religion is special and that religious objections are different.

There have been times, of course, when we've extended accommodations to people with non-religious serious objections to complying with certain laws, but my own view is that our constitutional tradition gives us a good reason for treating religious objections more seriously.

Another point that I think the caller's question reminds us of is that not all religious objections or not all conscientious objections can be accommodated. In some instances, governments might well decide that the interest they're trying to advance is so compelling and that the cost of exemptions is so high that they just can't be extended.

And sometimes in these health care contexts, especially in cases involving the care of children, we've seen the government's interests win out in lawsuits and in legislative battles.

LUDDEN: John Witte, when does the - what is the case for the government to override an exemption? What does it have to prove?

WITTE: Well, the standard is that the government has to prove a compelling state interest, in this instance the compelling state interest to protecting the health of the child, and the government has to demonstrate that it's done everything possible to do this as narrowly in its violation of somebody else's rights. If the government can show necessity and proportionality, which are the terms, the government can override the religious objections that are made.

So if it's a particularly dangerous disease for which the child is being vaccinated, in those instances, even though there is a sincere good-faith claim on the part of the parent seeking to have that child exempted from the injection, the government's interest is going to trump.

LUDDEN: We have an email here from Bill in Little Rock. He says: My wife was affected when the Catholic-run hospital clinic refused rather suddenly and unexpectedly to refill her birth control prescriptions when they had originally prescribed them to her. If she were to get pregnant, it would jeopardize her life because of a transplanted kidney.

Richard Garnett, it does seem like a lot of this is very fluid. It's not set in stone, and practice keeps changing.

GARNETT: And that shouldn't surprise us. I mean, the country's changed since the founding. Our country has become more religiously diverse, and the government does more things than it used to. And this means, when you add those two factors together, that you're bound to have more instances of potential conflict between regulations and religious believers.

In the specific instance that your caller raised, it seems to me that the fact that a Catholic hospital decides that it doesn't want to act in a way that's inconsistent with Catholic teaching shouldn't really surprise us very much. And it strikes me as being precisely the kind of religiously motivated act that our tradition suggests should be respected.

LUDDEN: Now, you had - you've argued some of these cases. Tell us a bit about the - is it peyote - am I saying that right - Supreme Court case that led to the Religious Freedom Restoration Act. What happened?

GARNETT: Well, I didn't argue that case. I was only in college then, but...

(LAUGHTER)

GARNETT: ...it's a landmark case, and Professor Witte knows it better than anyone. But the reason why every law student learns about it is because it's in that case where the court said in response to a claim that - by some members of the Native American Church that they wanted to use peyote, which is an illegal drug, they wanted to use it in a religious ceremony, and they claimed that the First Amendment gave them the right to an exemption so that they could use it.

The Supreme Court narrowly ruled that the First Amendment does not entitle religious believers to exemptions from generally applicable laws. So if the speed limit's 55 for everybody, it's going to be 55 for you, even if God tells you to drive 70.

(LAUGHTER)

GARNETT: That's the basic rule for the First Amendment. Now, there are some sort of technical and fine-grained exemptions to that. The government's not allowed to discriminate against religious practice. But basically, what Smith meant is that the question whether or not a religious believer is going to be accommodated moves away from constitutional litigation and more into litigation about statutory exemptions and moves into the arena of politics, really.

LUDDEN: So what's allowed in one community may not be in another, and that's OK.

GARNETT: Some states provide more protection to religious objectors than other states do. Of course, the federal law, the Religious Freedom Restoration Act applies across the board to the national government's activities. But, yes, in some states, there's more protection for religious objectors than there is in others.

LUDDEN: OK. We have an email from Wes, who says: Your guest just lumped Jehovah's Witnesses with all religions that reject medical treatment on the notion that they expect God to cure them. Jehovah's Witnesses reject only transfusion of whole blood or any its four major components, nothing else. So...

(LAUGHTER)

LUDDEN: ...we'll let that stand there. We have another email from Dan, who says his neighbors a few years ago had a mega-church built in our vicinity. In spite of local opposition, our planning commission seemed reluctant to oppose the construction because they were concerned about a lawsuit based on religious exemption. John Witte, I was surprised and didn't realize that land use is a big religious exemption here in some cases.

WITTE: Yes. There's a - one of the fallouts of the Smith case, that peyote case that Professor Garnett just described, is that many of these exemptions that are now given to religious groups are given on statutory grounds. And one of the important pieces of congressional legislation is the Religious Land Use and Institutionalized Persons Act passed about a decade ago that gives religious land users a particular protection, and that government's intrusion upon their use of their land has to meet the tougher standards that was - that were in place before Smith.

In this instance, when religious groups seek to either expand their property, to revise their property or to build new property, a denial of their claim to get a building license and to get permission in the zoning ordinances to build their properties oftentimes is going to give rise to a law suit under the Religious Land Use and Institutionalized Persons Act. And counties and villages and towns oftentimes can't afford that litigation, and will, as a consequence, be more accommodating of their petitions for zoning and building ordinance permissions.

LUDDEN: Interesting. Let me just remind people, you're listening to TALK OF THE NATION, from NPR News. And Gabe is on the line from Cambridge, Massachusetts. Hi, Gabe. Welcome to the show.

GABE: Thank you. Hi.

LUDDEN: Go right ahead.

GABE: Well, I'm calling because my girlfriend, we're both teachers. She, for a long time, taught at a Quaker school. And when enrolment dropped and her class was let go, she was unable to apply for unemployment insurance because I guess religious schools they don't pay into Social Security, so they don't have to - they can't claim unemployment benefits. I mean, it just seems to me like a teacher anywhere else can get unemployment benefits, but somehow, if you work for a religious school, you can't?

LUDDEN: Huh. Interesting. Richard Garnett?

GARNETT: I haven't heard about this rule that the caller is mentioning. I mean, there's certainly no reason why the government couldn't decide to provide unemployment benefits to people who are - who lose their jobs at religious schools. I would say, though, that it is important to remember, though, that religious schools do and should enjoy significant protection and really independence when it comes to selecting their teachers. I mean, in my view, if we respect the - kind of the mission and the independence and the distinctiveness of religious schools, we're going to allow them to hire their teachers on the bases of - in many cases, you know, whether the teacher embraces the religious mission of the school - you know, applying some standards that we wouldn't want public schools to apply, for example.

LUDDEN: Huh. All right. Dave, thanks for that call. Here's an email from John: If a fellow employee can wear a head covering because it's his or her religion, but I cannot, isn't that discrimination against me and a violation of my right to equal protection? John Witte?

WITTE: No. It's a protection of the religious freedom of the party that wants to wear religious apparel. The person that wants to wear a yarmulke is in a different position than a person who wants to wear a baseball cap.

LUDDEN: OK. Another email from Jerry: If I'm agnostic, but object on moral grounds to participate in a war, is it fair to require that I be part of a religion in order to be able to assert my pacifist convictions? Richard Garnett?

GARNETT: I think we've often decided - and here, I'm going to defer, obviously, to experts in the military. But that - when you're having a draft, you want to make sure you get the best fighting force you can, and you don't want to have people in the armed forces who, for reasons of deep conscientious conviction, are unable to bear arms, and so on.

But I want to just circle back to what we have said at the outset, which is that - and what Professor Witte just said - is that at end of the day, in our tradition, we do treat religion-based objections differently. There are long, solid historical reasons for doing so. It doesn't mean that people who have other objections are being insincere. It doesn't mean that those objections aren't well thought out. But in the society like ours, it's always understood kind of the freedom of religious conscience as being connected in important ways to the separation of church and state. We've taken account of the fact that religion-based objections are different.

LUDDEN: All right. And I think we're going to have to leave it there. Richard Garnett is an associate dean and law professor at the University of Notre Dame. We spoke to him today from his office at the university. Thank you so much.

GARNETT: My pleasure.

LUDDEN: And John Witte is a law professor and director of Center for the Study of Law and Religion at Emory University, and joined us from member station WABE in Atlanta. Thanks to you.

WITTE: Thank you, Jennifer. It's good to be here.

LUDDEN: Up next, North Korea's third nuclear test prompted one listener to ask us for a reading list to get up to speed on that country and the region. We'll do just that after a short break. Stay with us. I'm Jennifer Ludden. It's the TALK OF THE NATION, from NPR News. Transcript provided by NPR, Copyright NPR.